Introduction to Proceeding Pro Se in a Criminal Case
One of the most fundamental rights in the American criminal justice system is the right of a criminal defendant to have adequate and effective legal representation. So important is this right to our system of justice that the founders of this country enshrined it in our Bill of Rights: many states, including Arizona, have also adopted laws and/or state constitutional provisions adopting this right and applying it to defendants charged with state crimes.
The right to counsel (as it is sometimes called) guarantees that an individual who is charged with a misdemeanor or felony offense in Arizona is able to hire an attorney to represent him or her or (if he or she cannot afford an attorney) to have an attorney appointed to represent him or her throughout the duration of his or her case.
Like many other constitutional rights applicable in the context of a criminal case, the defendant can always waive his or her right to have an attorney represent him or her. When this occurs, the defendant becomes his or her own attorney: this is called proceeding pro se. Some individuals familiar with the criminal justice system or who do not trust attorneys for one reason or another may elect to proceed pro se after being charged with a criminal offense.
If you elect to represent yourself, what can you expect to happen as your case progresses?
You May Waive Your Right to an Attorney – and Rescind that Waiver – at Any Time
You may announce to the court at any time that you wish to waive your right to an attorney and proceed pro se. The court will typically either require that you announce this in open court where a record can be made of your request and/or that you submit your request to proceed pro se in writing. Once your request is made, the court will ask you a series of questions designed to assist the court in determining whether your request to proceed without an attorney is being made voluntarily (i.e., no one is threatening you to give up your right) and knowingly (i.e., you understand the consequences of giving up your right). Some of these questions will likely include:
- How old are you?
- How far did you go in school?
- Can you read and write in the English language?
- Have you been involved in a court proceeding before?
- Can you identify important court personnel and/or articulate the stages through which your case will proceed?
- Do you understand the consequences of proceeding pro se?
- Did anyone threaten you, coerce you, or make you promises – or attempt to do any of these things – in order to have you waive your right to an attorney?
- Is your request being made because you feel you cannot afford an attorney?
If the court is satisfied that your request to proceed pro se is being made voluntarily and knowingly, the court will accept your waiver. From that point forward, you will be responsible for representing yourself in all future hearings and proceedings.
If you later change your mind, in most cases the court will allow you to rescind your waiver of counsel and either hire your own attorney or apply for a court-appointed attorney. (The only exception may be if your trial has already commenced and during the midst of your trial you request an attorney. However, even in this situation most courts will allow you to obtain an attorney and grant your new attorney a few days to become familiar with your case.)
A “Backup” Attorney – The Best of Both Worlds?
In cases where you are adamant that you do not want an attorney but the court is uneasy with allowing you to proceed without an attorney (either because of the severity of the offense or because the court is not convinced your waiver is made freely and knowingly), the court may appoint an attorney to act as a “backup” or “resource” for you. This attorney will appear at your court hearings and will make notes about the progress of your case, but in general will not actively participate in any hearings or assist you in presenting your case at trial. However, you are able to consult with this attorney if you have questions about the law or about procedural matters such as when certain motions should be filed with the court. In addition, this attorney is available to “step in” for you if decide you do want legal representation.
What are Some Advantages of Proceeding Pro Se?
To be sure, there are certain advantages to proceeding pro se. One of the greatest advantages is that you have complete control over how your case is prepared and presented. The law gives criminal defense attorneys a certain amount of control over a client’s criminal case: The lawyer can, for example, decide whether certain witnesses will be called, what evidence should be admitted, and when objections to the prosecution’s evidence or arguments should be raised. Even if you, the defendant, disagree with the lawyer’s course of action in a hearing or trial, an appellate court will generally give deference to the lawyer’s actions.
Another advantage of proceeding pro se is cost. Since you are your own attorney when you proceed pro se, then (obviously) you do not need to worry about the expense associated with hiring your own attorney or with the imposition of your court-appointed attorney’s fees if you are convicted in your case. So if the cost or expense of an attorney are of concern to you, proceeding pro se would certainly address this concern.
What are Some Consequences of Proceeding Pro Se?
When you announce to the court that you are wanting to represent yourself, the court may list off some of the disadvantages or consequences of proceeding in your case without an attorney. The court is not obligated to do this, however, so it is important to understand some of the consequences that occur once you have waived your right to an attorney:
- You become responsible for your case. If an attorney makes a mistake in your case, the mistake can sometimes lead to a reversal of a conviction (depending on the nature of the mistake). For example, if your attorney does not allow you to testify at your trial but you insisted that you wanted to do so, this can lead an appellate court to find that your constitutional rights were violated. This may result in the appellate court requiring the prosecution to try your case again. However, if you are representing yourself there is no such ability to “blame someone else” if your defense does not pan out the way you envisioned. In this situation, the appellate courts will not reverse a conviction because you decided not to subpoena certain witnesses or elected not to testify at your trial. So while proceeding pro se does give you the freedom to handle your case the way you see fit, it also saddles you with the consequences of your choices in court.
- You must seek your own help if you need it. The judge, the prosecutor, and the court personnel cannot assist you in preparing for your case or presenting your arguments in court. If you are uncertain about how to accomplish a specific task related to your case, you must either figure out how to do the task yourself or find some other resource to assist you. (Court personnel can give you information about the dates of upcoming hearings and provide you with copies of court documents. Similarly, the prosecutor’s office can provide you with copies of evidence and documents related to your case or allow you to physically inspect these items.)
For example, suppose that you elect to represent yourself in a driving under the influence (DUI) case. You believe the officer did not have a legal reason to stop your car; however, you do not know how to bring this argument before the court. The judge, the prosecutor, and court personnel are not able to tell you the type of motion you need to file (a motion to suppress), how to prepare and format your motion, what you need to include in your motion, and how to properly file your motion and serve a copy on the prosecution. If you fail to follow the proper procedures, you may not be able to present your motion for consideration by the court.
- You are held to the same standards as an attorney. Not only are you “on your own” as you prepare and present your case, most judges will expect you to hold a level of knowledge and understanding about the legal system as an attorney licensed to practice in Arizona. This means:
- Your pleadings and motions will need to comply with the requisite formalities.
- You will need to meet deadlines set by the court or timely and appropriately request extensions of these deadlines;
- Know how to lay a foundation for the admission of evidence in your case;
- Know how to examine a witness on direct examination and cross-examination (i.e., the types of questions you may and may not ask);
- Know how to properly lodge an objection to evidence and/or testimony;
- Know the permissible bounds of argument to the court or to the jury (in other words, know what you can say and cannot say when arguing the merits of your case).
While some judges may be more lenient than others, and the courts are directed to give pro se defendants some latitude and not require them to conform to every minute aspect of the law, the law does not give courts the discretion to treat pro se defendants wholly different than those who are represented by an attorney. For more information see “Does self representation in a criminal case ever make sense?”
Whether you are worried about costs, believe you can handle your case better than an attorney, or for some other personal reason, Arizona does allow you to represent yourself – that is, proceed pro se – in most cases. The procedure is simple: announce to the court you wish to represent yourself in your case or file a written letter with the court indicating your desire to proceed pro se. A court will hold a hearing and question you to determine if you are making your decision freely and whether you understand the consequences of your decision. If the court is not satisfied that your decision is being made voluntarily or with knowledge of the ramifications that follow from your decision, the court may decide to appoint an attorney to act as “standby” counsel. This attorney will not actively participate in your case but would be available as a resource to you if you had questions along the way. Ultimately, it is up for you – the defendant – to decide whether the benefits of proceeding pro se outweigh the consequences. If you would like to know more about proceeding pro se in a criminal case contact an attorney at Ariano & Associates, PLLC.